Marriage is not for everyone. Some couples cannot afford it while others prefer to avoid the formality, regarding marriage as a public declaration of love which they do not need to prove to anyone other than themselves.
The number of cohabiting couples has increased dramatically over the last 20 years. Unfortunately, the law offers very little financial protection for such couples when their relationship breaks down and also if one of them dies. Even cohabitees who have lived together for a number of years are not afforded the same rights on separation as those who are married or in a civil partnership. There is no such concept as the 'common law husband/wife'.
Legislation entitles divorcing couples to make a variety of claims against each other such as for maintenance for themselves, for lump sums of money or for orders in relation to pensions, with the most common being for pension sharing. It does not matter who owns the asset as the court will take into account all of the income and capital resources and have discretion regarding any financial settlement to achieve a fair outcome.
In contrast, when cohabitees separate assets will be retained by the person who owns them unless the other can show that they have created an interest in the property in question in the event of a dispute. This involves reliance upon complex trust and property law. Cohabiting couples cannot seek maintenance other than for children, they cannot apply for an order for a lump sum payment and cannot claim any share of their former partner's pension.
The Government has talked about giving those who have lived together for a period of time some of the same rights as those who are married or in a civil partnership but so far, this is only talk and the law has not changed.
To avoid difficulties in the future, cohabiting couples may wish to consider what should happen in relation to the ownership of their home, its contents or any other assets in the event of their separation and can do this by entering into a Cohabitation Agreement. Such an agreement will also govern the financial arrangements between the couple while they are living together.
Provided a Cohabitation Agreement has been properly drafted, it is signed as a Deed and both parties have received independent legal advice it should operate as a legally enforceable contract which will be upheld by the court. On separation, it will provide for a certain outcome unlike where there are court proceedings.
Resolving these issues while relations are good and strong can be relatively quick and easy. If left until the relationship has broken down, a lengthy and expensive dispute may arise and acrimony can result at an already unhappy time.
Jayne Turner is a Partner in the Family team in Taunton. She is a Resolution Accredited Specialist in Complex Financial Remedies and Pensions on Divorce, an Advanced Member of the Law Society’s Family Law Panel and trained and experienced collaborative lawyer. Jayne is described in the Legal 500 2018 directory as “sensible, client focused and knowledgeable”.
For any more information on the topics within the article please email Jayne on CJ.Turner@ashfords.co.uk.